Citation Nr: 0336668
Decision Date: 12/30/03 Archive Date: 01/07/04
DOCKET NO. 92-15 820A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUES
1. Entitlement to service connection for colitis.
2. Entitlement to service connection for multiple joint pain
and muscle spasms of the back, shoulders, and elbows due to
an undiagnosed illness.
3. Entitlement to service connection for a sleep disorder
due to an undiagnosed illness.
4. Entitlement to service connection for fatigue due to an
undiagnosed illness.
5. Entitlement to service connection for hearing loss of the
left ear.
6. Entitlement to an increased rating for hypertensive heart
disease, currently evaluated as 30 percent disabling.
7. Entitlement to an increased rating for asthma and chronic
obstructive pulmonary disease (COPD), currently evaluated as
30 percent disabling, based on the initial grant of service
connection.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
A. Hinton, Counsel
INTRODUCTION
The veteran had active duty from October 1990 to June 1991,
including service in Southwest Asia from November 1990 to
March 1991. He was also a member of the National Guard from
1969 to 1993, which included periods of active duty for
training, to include from July to November 1969 and periods
of inactive duty training.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal of rating actions by the Department of
Veterans Affairs (VA) Regional Office (RO) in Jackson,
Mississippi.
In a June 1992 rating action, the RO granted service
connection for asthma and chronic obstructive pulmonary
disease (COPD) and assigned that disability a 10 percent
rating. The veteran perfected an appeal as to that assigned
rating. In May 1993, the RO increased the 10 percent rating
in effect for the asthma and COPD to 30 percent. At that
time the RO indicated that the increase was a complete grant
of the benefit sought and the RO withdrew this issue from
appellate consideration. In a December 1997 rating decision,
the RO denied a claim for an increased (compensable) rating
for hypertension. The veteran perfected an appeal as to that
determination. Subsequently in a July 2003 rating decision,
the RO increased the noncompensable rating to 30 percent.
Since the increase in ratings assigned for asthma and COPD
and for hypertension during the appeal did not constitute a
full grant of the benefits sought, the increased rating
issues regarding these two disabilities remain in appellate
status. AB v. Brown, 6 Vet. App. 35, 39 (1993). Also in
July 2003 the RO granted service connection for hearing loss
of the right ear. Thus the issue of service connection for
that disorder is no longer before the Board for appellate
consideration.
The issues of service connection for multiple joint pain and
muscle spasms of the back, shoulders, and elbows due to an
undiagnosed illness, and an increased rating for hypertensive
heart disease will be discussed in the Remand section of this
decision.
FINDINGS OF FACT
1. The colitis pre-existed the veteran's entry into active
duty.
2. The pre-service colitis underwent a chronic increase in
severity beyond natural progression during service.
3. The veteran does not have a chronic undiagnosed
disability manifested by symptoms involving a sleep disorder.
4. The veteran does not have an undiagnosed disability
manifested by a symptom involving fatigue.
5. The appellant does not currently have hearing loss of the
left ear as defined by the VA.
6. The veteran's asthma and COPD are productive of mild
impairment without the need of oral cotisteroids,
immunosuppressive medication, or required monthly visits to a
physician with pulmonary function tests showing both forced
expiratory volume in one second and the ratio of forced
expiratory volume in one second to forced vital capacity
above 55 percent of predicted.
CONCLUSIONS OF LAW
1. The pre-service colitis was aggravated by active duty.
38 U.S.C.A. §§ 1110, 1131, 1153 (West 2002); 38 C.F.R. §
3.306 (2003).
2. A chronic disability manifested by a sleep disorder due
to an undiagnosed illness was not incurred in or aggravated
by the veteran's active military service. 38 U.S.C.A. §§
1110, 1117, 1131 (West 2002); 38 C.F.R. § 3.303, 3.317
(2003).
3. A chronic disability manifested by fatigue due to an
undiagnosed illness was not incurred in or aggravated by the
veteran's active military service. 38 U.S.C.A. §§ 1110, 1117,
1131 (West 2002); 38 C.F.R. § 3.303, 3.317 (2003).
4. Left ear hearing loss was not incurred or aggravated
during active service. 38 U.S.C.A. § 1110, 1131 (West 2002);
38 C.F.R. §§ 3.303, 3.385 (2003).
5. The criteria for entitlement to an initial rating in
excess of 30 percent for asthma and COPD are not met. 38
U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4, Diagnostic
Codes 6602, 6603 (in effect both prior to and on October 7,
1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
There has been a significant change in the law during the
pendency of this appeal with the enactment of the Veterans
Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475,
114 Stat. 2096 (2000). See, 38 U.S.C.A. §§ 5102, 5103,
5103A, 5107 (West. 2002). This law eliminates the concept of
a well-grounded claim, and redefines the obligations of VA
with respect to the duty to assist. The new law also
includes an enhanced duty to notify a claimant as to the
information and evidence necessary to substantiate a claim
for VA benefits. The final rule implementing the VCAA was
published on August 29,2001.66 Fed. Reg. 45,620-32 (Aug. 29,
2001) (codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and
3.326(a)).
The RO notified the veteran of the VCAA including what
evidence the VA would obtain and what evidence the veteran
should provide in a notice letter of February 2002.
Quartuccio v. Principi, 16 Vet. App. 183 (2002). The RO has
obtained pertinent records and afforded the veteran with
pertinent examinations. The veteran testified in connection
with the present appeal at June 2001 by way of a
videoconference hearing before the undersigned Veterans Law
Judge. Also VA examinations have been conducted during the
appeal period.
In a decision promulgated on September 22, 2003, Paralyzed
Veterans of America v. Secretary of Veterans Affairs, 345
F.3d 1334 (Fed. Cir. 2003), the United States Court of
Appeals for the Federal Circuit (Court) invalidated the 30-
day response period contained in 38 C.F.R. § 3.159(b)(1) as
inconsistent with 38 U.S.C.§ 5103(b)(1). Under that decision
no less than a one-year notice for response is required. In
this regard, the RO requested evidence from the veteran in
February 2002, more than one year ago and additional evidence
was received. The July 2003 supplemental statement of the
case included 38 C.F.R. § 3.159(b)(1). However, no evidence
was requested from the veteran at that time. Accordingly,
the Board finds that the requirements of the VCAA have been
met and adjudication of the issues in this decision is not
prejudicial to the veteran. Bernard v. Brown, 4 Vet. App.
384 (1993).
I Service Connection
Service connection may be established for a disability
resulting from an injury suffered or disease contracted in
the line of duty, or for aggravation of a pre- existing
injury or disease in the line of duty. 38 U.S.C.A. §§ 1110,
1131 (West 2002). Regulations also provide that service
connection may be granted for a disability diagnosed after
discharge, when all the evidence, including that pertinent to
service, establishes that the disability is due to disease or
injury which was incurred in or aggravated by service. 38
C.F.R. § 3.303(d) (2003). In addition, if a condition noted
during service is not shown to be chronic, then generally a
showing of continuity of symptomatology after service is
required for service connection. 38 C.F.R § 3.303(b) (2003).
Service incurrence will be presumed for certain chronic
diseases, including duodenal ulcers and sensorineural hearing
loss, if manifest to a compensable degree within the year
after active service. 38 C.F.R. §§ 3.307, 3.309 (2003).
Active service includes periods of active duty for training
during which the individual concerned was disabled or died
from a disease or injury incurred or aggravated in line of
duty, and any period of inactive duty training during which
the individual concerned was disabled or died from an injury
incurred in or aggravated in line of duty. 38 U.S.C.A. §
101(24) (West 2002); 38 C.F.R. § 3.6(a) (2003).
Every person employed in the active military, naval, or air
service shall be taken to have been in sound condition when
examined, accepted and enrolled for service, except as to
defects, infirmities, or disorders noted at the time of the
examination, acceptance and enrollment, or where clear and
unmistakable evidence demonstrates that the injury or disease
existed before acceptance and enrollment and was not
aggravated by such service. See 38 U.S.C.A. §§ 1111 (West
2002).
A preexisting injury or disease will be considered to have
been aggravated by active service, where there is an increase
in disability during such service, unless there is a specific
finding that the increase in disability is due to the natural
progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. §
3.306(a).
Lay statements and testimony are considered to be competent
evidence when describing the symptoms of a disease or
disability or an injury. However, when the determinative
issue involves a question of medical causation, only
individuals possessing specialized training and knowledge are
competent to render an opinion. Espiritu v. Derwinski, 2
Vet.App. 492 (1992). The evidence does not show that the
veteran possesses medical expertise and it is not contended
otherwise.
A. Service Connection for Colitis
Service medical records include a periodic examination dated
in May 1986. which showed that the veteran was found to have
colitis. The examination showed no pertinent abnormality.
During a periodic examination in March 1990 the veteran gave
a history of stomach, liver, or intestinal trouble. The
examination clinically evaluated the stomach and viscera as
normal. The veteran's service medical records show that in
February 1991, the veteran was evaluated for asthma and COPD.
At that time he gave a previous medical history of having had
colitis, usually diarrhea with certain foods. He reported
that the symptoms were controlled with occasional Azulfidine,
and that he received a steroid enema four years before. In a
March 1991 questionnaire the veteran indicated that the only
disorders he had while in Southwest Asia were chronic
obstructive pulmonary disease and asthma. The veteran
indicated that he did not have stomach or belly pain, nausea,
diarrhea, or bloody bowel movements. A March 1991 dispensary
report indicated that the veteran had multiple medical
problems including colitis.
During a demobilization examination in March 1991 the veteran
gave a history of stomach, liver, or intestinal trouble. The
examination clinically evaluated the stomach and viscera as
normal. In April 1991 he was seen at the dispensary for
puritus ani. At that time a history of colitis was reported.
During a physical examination in May 1991, the veteran was
examined primarily in connection with respiratory
difficulties. At that time the examiner noted a history of
treatment for puritus ani for which the treatment providers
had not been not sure whether the veteran could have colitis.
During the present examination abdominal examination was
negative, and the examiner opined that the veteran's
gastrointestinal symptoms did not seem to play much of a
role. The diagnoses included rule out colitis with
proctitis.
During a March 1992 VA general examination, the veteran
reported a history of colitis since 1983. He had complaints
that he had developed a problem with diarrhea two to three
times per week since his service in Saudi Arabia. He also
complained of recurrent diarrhea with abdominal cramps.
After examination the diagnosis included colitis, by history,
symptomatic.
Private medical records include a February 1993 statement
from A. K. R., M.D.
Dr. R. stated that he had treated the veteran in the period
between 1983 and 1987 for ulcerative colitis, and that since
then he had not seen the veteran or have knowledge of any
exacerbation of the illness.
A hearing was held at the RO in February 1993. At that time
the veteran reported that the colitis started in 1983. He
was hospitalized and treated with medication, which cured it.
He had no problems since 1985 or 1986. He stated that he
experienced cramps and diarrhea while in the Persian Gulf and
the symptoms had persisted.
The report of a private examination in April 1996 shows that
the veteran reported he had had problems with his colon
involving colitis since 1983. He reported that he develops
abdominal cramps and diarrhea due to this, which occurred one
to two times per month. After examination, the impression
included history of colitis.
During an August 1997 VA general examination, the veteran
reported that in 1983 he developed bloody diarrhea and was
evaluated and told that he had ulcerative colitis. He
reported that at that time he was treated over a short period
with steroid enemas, with resolution of the symptoms. The
symptoms remained under control until he was serving in
Desert Storm. Since he returned from there, he had episodes
of cramping pain and diarrhea and there was no blood. The
veteran reported that he treated himself with Azulfidine
during exacerbations in which he has abdominal cramping and
up to four stools daily. The treatment was effective in
controlling the symptoms. Examination of the digestive
system revealed no abdominal viscera areas of tenderness or
masses were felt. After examination, the diagnoses included
history of ulcerative colitis, treated, resolved with
recurrence of cramping and diarrhea during and since desert
storm.
VA outpatient records in February 1999 and April 2000 include
a complaint of bouts of colitis, and an assessment of
ulcerative colitis.
During a May 2002 VA stomach, duodenum and peritoneal
adhesions examination, the veteran reported that he had had
mild colitis since 1983. He complained of occasional
diarrhea and occasional abdominal cramps. After examination,
the diagnosis was gastroesophageal reflux disease and hiatal
hernia, stable on treatment.
A videoconference hearing was conducted before the
undersigned Veterans Law Judge. At that time the veteran
testified that he had been treated for colitis in 1983 and
had no problems for the seven years prior to active duty. He
experienced gastrointestinal symptoms while stationed in the
Persian Gulf, which have persisted. At the time of the
hearing he submitted a copy of a prescription for Azulfidine
issued by the military in March 1991.
Analysis
The evidence shows that a physical examination was not
conducted when the veteran was called to active duty in
October 1990. Therefore, 38 U.S.C.A. §§ 1111 is not
applicable.
A review of the private medical records shows that the
veteran was treated for ulcerative colitis from 1983 to 1987,
prior to active duty. This has been confirmed by the veteran
and the clinical history recorded during and after service.
Therefore the issue is whether the preservice colitis was
aggravated by active duty.
In this regard the record shows that the veteran's colitis
had been asymptomatic for several years prior to his entry in
to active duty. However, a March 1991 dispensary record
listed colitis as on of the veteran's physical disabilities.
The veteran has submitted a copy of a prescription dated in
March 1991 for Azulfidine. Additionally, the VA examination
in March 1992 confirmed that the colitis was symptomatic.
This is approximately nine months after service. Furthermore
subsequent medical records and examinations and the veteran's
statements indicate that the colitis has remained
symptomatic. Accordingly, it is the judgment of the Board
that the preservice colitis underwent a chronic increased in
severity during active duty. Accordingly service connection
is warranted.
B. Service Connection for Fatigue and a Sleep Disorder
Resulting from an Undiagnosed Illness
The veteran essentially claims that he is entitled to service
connection for sleep disorder, and fatigue due to an
undiagnosed illnesses resulting from his service in the
Southwest Asia Theater of operations during the Persian Gulf
War.
The veteran's service medical records do not show a diagnosis
of sleep disorder or fatigue. During a May 1991
demobilization examination the veteran gave a history of
difficulty sleeping. The examination showed that the veteran
had no pertinent abnormality.
Subsequently the veteran received intermittent treatment at
VA and private facilities for various disorders.
During a September 1997 VA psychiatric examination, the
veteran's main complaint from a physical viewpoint involved a
skin condition that was apparently resistive to treatment and
did itch and was unsightly and very troubling. After
examination, the examiner addressed questions as to whether
problems with fatigue and sleeping were related to some
undiagnosed condition. In this connection, the examiner
noted that fatigue may be a symptom of some physical problem
and was often found in cases of infectious diseases and
chronic conditions and other disorders, and not only a
symptom of mental disturbance. The examiner concluded that
the veteran was not in any way incapacitated by any nervous
or mental symptoms.
During a September 1997 VA examination for miscellaneous
neurological disorders, the veteran complained of joint
pains, mainly in the knees, shoulders and wrists. He
complained of difficulty sleeping. He complained that he
wakes up with problems of breathing, and sometimes with back
pain. His main problem was that he was unable to go to
sleep.
After neurological examination, the examination report
contains the following impression: chronic low back. The
examiner indicated that the veteran had problems going to
sleep, but had no snoring or daytime hypersomnolence and not
associated with any sleep disorder.
The report of an April 2003 VA examination for mental
disorders shows that the examiner was to evaluate the veteran
for symptoms of fatigue and sleep disturbance to determine if
these were associated with and part of any mental disorder.
The examiner reviewed the claims file and interviewed the
veteran. The examiner noted that the veteran's report made
it clear that he was in great and near continual distress
from his skin problems, which according to the veteran, kept
him up, burns like fire, and drove him crazy. The report
noted that the veteran's sleep disturbance began after his
skin trouble started, and that it was hard for the veteran to
go to sleep and stay asleep. The veteran also reported in
this connection that his joints swell and every joint felt
like it was on fire.
After examination, the examiner opined that he found no
complex of symptoms meeting criteria for a diagnosis of a
mental disorder. The examiner noted that the veteran was in
considerable distress from his skin condition with some
distress from aching joints. The examiner opined that the
sleep disturbance and fatigue began in 1991 with a change in
his health with skin and respiratory illnesses, and were
compatible with the degree of distress from the veteran's
health problems other than nervousness.
Analysis
In addition to the above-referenced laws and regulations
pertaining generally to entitlement to service connection, 38
U.S.C.A. § 1117 provides for service connection in cases in
which a veteran suffers from chronic disability resulting
from an undiagnosed illness which became manifest during
service on active duty in the Armed Forces in the Southwest
Asia theater of operations during the Persian Gulf War, or
that became manifest to a degree of 10 percent or more within
a specified presumption period following service in the
Southwest Asia theater of operations during the Persian Gulf
War.
38 C.F.R. § 3.317(a) further provides that the VA shall pay
compensation to a Persian Gulf veteran who "exhibits
objective indications of chronic disability" (manifested by
certain signs or symptoms), which, by history, physical
examination and laboratory tests cannot be attributed to any
known clinical diagnosis. Objective indications of a chronic
disability include both "signs," in the medical sense of
objective evidence perceptible to an examining physician, and
other, non-medical indicators that are capable of independent
verification. 38 C.F.R. § 3.317(a). Signs and symptoms of an
undiagnosed illness include, but are not limited to, fatigue,
skin lesions, headache, muscle pain, joint pain, neurologic
signs or symptoms, neuropsychological signs or symptoms,
signs or symptoms involving the respiratory system, sleep
disturbances, gastrointestinal signs or symptoms,
cardiovascular signs or symptoms, abnormal weight loss, or
menstrual disorders. See 38 C.F.R. § 3.317(b). Compensation
availability has been expanded to include "medically
unexplained chronic multisymptom illness," such as
fibromyalgia, chronic fatigue syndrome, and irritable bowel
syndrome, as well as any diagnosed illness that the Secretary
determines by regulation to be service-connected. See
Veterans Education and Benefits Expansion Act of 2001, Pub.
L. No. 107-1-3, 115 Stat. 976 (2001).
The Board must determine whether the appellant, a Gulf War
veteran, has submitted objective indications of chronic
disability which result from one or more signs or symptoms
which became manifest either during active service in the
Southwest Asia theater of operations during the Gulf War, or
to a degree of 10 percent not later than December 31, 2006,
and by history, physical examination, and laboratory tests it
cannot be attributed to any known clinical diagnosis. 38
U.S.C.A. § 1117; 38 C.F.R. § 3.317.
The Board initially notes that the RO has granted service
connection for six disorders including, asthma and COPD,
currently evaluated as 30 percent disabling, and psoriatic-
like skin disease due to undiagnosed illness and pruritus ani
with history of anal abscess, currently evaluated as 30
percent disabling. The veteran is therefore already receiving
compensation for the symptoms of these disabilities. Service
connection for any disability shown must be distinct from his
service-connected conditions. See 38 C.F.R. § 4.14 (2002)
(avoidance of pyramiding).
With respect to the veteran's claim of service connection for
sleep disorder and fatigue, as due to an undiagnosed illness,
the Board notes that these symptoms have been attributed to
the veteran's service-connected skin and respiratory
disorders and the diagnosed joint disorder. The VA examiner
in April 2003 opined in this regard that the veteran was in
considerable distress from his skin condition with some
distress from aching joints, and that his sleep disturbance
and fatigue began with the veteran's skin and respiratory
illness.
Thus, the claimed sleep disorder and, fatigue have been
attributed to known clinical diagnoses. Absent a current
demonstration of objective indications of chronic disability,
which, cannot be attributed to any known clinical diagnosis,
there is no such disability for which service connection
could be granted. Therefore, the preponderance of the
evidence is against the veteran's claims for service
connection for sleep disorder and fatigue due to an
undiagnosed illness.
C. Service Connection for Hearing Loss of the Left Ear
Service medical records include the reports from a number of
examinations at various times which included audiology
testing results.
During a March 1992 VA audiology examination, the veteran
reported an onset of hearing loss in the 1960's and 1970's
while in the Army Reserve, which he attributed to exposure to
noise from artillery. Audiometric testing conducted at that
time revealed pure tone thresholds of 15, 10, 0, 10, and 25
decibels in his left ear, at 500, 1,000, 2,000, 3,000, and
4,000 Hz. Speech audiometry revealed speech recognition
ability of 98 percent in the left ear. The report contains a
summary of test results, that the left ear hearing was within
normal limits, and with excellent word recognition ability.
During the veteran's June 2001 hearing he indicated that
prior to active duty, while in the Reserve, he was in the
artillery for six years and was exposed to noise during
active duty for training and in the Persian Gulf. He noted
his hearing loss when tested after his return from overseas.
During a June 2002 VA audiology examination, the veteran's
chief complaint was bilateral hearing loss, which he
indicated had an onset ten years before, "no circumstance."
Audiometric testing conducted at that time revealed pure tone
thresholds of 20, 15, 15, 25, and 35 decibels in his left
ear, at 500, 1,000, 2,000, 3,000, and 4,000 Hz. Speech
audiometry revealed speech recognition ability of 96 percent
in the left ear. The report contains a diagnosis not
referable to the left ear.
During a June 2002 VA examination for ear disease, the
veteran reported he first noticed tinnitus while in Saudi
Arabia during Desert Storm. The report indicated that
reference was made to exposure to noise from a generator and
to artillery as a cause. After examination, the diagnosis
was that the veteran did have measurable hearing loss, which
was of a notched pattern in the higher frequencies,
characteristic of noise-induced hearing loss. This was not
very severe and was slightly worse in the right ear.
A May 2003 addendum to the June 2002 VA audiology examination
noted that the claims file was reviewed to determine if the
veteran's claim of bilateral hearing loss was related to his
military service. The addendum noted that the claims file
review revealed that hearing tests were conducted in March
1969, October 1969, March 1981, May 1986, March 1990, March
1991 and March 1992. The examiner noted that the two 1969
audiology tests both showed bilateral normal hearing. The
1986 audiology testing showed bilateral normal hearing for
rating purposes. The 1990, 1991 and 1992 audiology testing
all showed mild right ear hearing loss at 4000 HZ. The 1981
testing showed 15/15 hearing for speech for each ear. Based
on review of the claims file, the examiner opined that the
veteran sustained only unilateral right ear hearing loss
during service, and there was no evidence that his additional
left ear hearing loss identified on the 2002 audiology
testing was sustained during military service. In this
connection, the examiner noted that hearing damage from a
particular noise exposure occurs at the time of exposure, and
does not remain dormant and appear many years later. The
examiner opined that the veteran's report of civilian
occupational noise exposure and hobby noise exposure post
service would most likely be the cause of the left ear
hearing loss currently present. The addendum contains a
summary that the veteran had unilateral right ear hearing
loss at 4000 HZ attributable to service.
Analysis
In addition to the laws and regulations referenced elsewhere
above, for the purposes of applying the laws administered by
the VA, impaired hearing will be considered to be a
disability when the auditory threshold in any of the
frequencies of 500, 1,000, 2,000, 3,000, and 4,000 Hertz is
40 decibels or greater; or when the auditory thresholds for
at least three of these frequencies are 26 decibels or
greater; or when speech recognition scores using the Maryland
CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2003).
The threshold for normal hearing is from 0 to 20 decibels;
higher threshold levels indicate some degree of hearing loss.
Hensley v. Brown, 5 Vet. App. 155 (1993).
A hearing loss disability under the standards of 38 C.F.R. §
3.385 was not shown during the veteran's period of active
duty, although such is not required for service connection.
Service connection is still possible if the veteran currently
has a hearing loss disability under the standards of 38
C.F.R. § 3.385 and the condition can be linked to service.
Ledford v. Derwinski, 3 Vet. App. 87 (1992).
To summarize, the veteran's testimony describing his noise
exposure during service is considered to be competent
evidence. However, this fact, in and of itself, is
insufficient to establish service connection. The evidence
must also show that the veteran currently has a chronic
hearing loss as defined by 38 C.F.R. § 3.385 caused by the
inservice noise exposure.
In this regard, the most recent audiological evaluation in
June 2002 shows that the appellant does not currently have
hearing loss by VA standards as set forth in 38 C.F.R. §
3.385. Thus, there is no current disability for which
service connection may be granted. As such, the appellant's
claim of entitlement to service connection for hearing loss
of the left ear must be denied.
II. Increased Rating for Asthma and COPD
Disability ratings are based upon the average impairment of
earning capacity as determined by a schedule for rating
disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part
4 (2003). Separate rating codes identify the various
disabilities. In determining the current level of
impairment, the disability must be considered in the context
of the whole recorded history, including service medical
records. 38 C.F.R. §§ 4.2, 4.41 (2003). In Francisco v.
Brown, 7 Vet. App. 55, 58 (1994),it was held that
"[c]ompensation for service-connected injury is limited to
those claims which show present disability," and held: "Where
entitlement to compensation has already been established and
an increase in the disability rating is at issue, the present
level of disability is of primary importance."
An evaluation of the level of disability present also
includes consideration of the functional impairment of the
veteran's ability to engage in ordinary activities, including
employment, and the effect of symptoms on the functional
abilities. 38 C.F.R. § 4.10 (2003). Where there is a
question as to which of two ratings shall be applied, the
higher rating will be assigned if the disability picture more
nearly approximates the criteria required for that rating. 38
C.F.R. § 4.7 (2003).
The veteran appealed the initial assignment of the evaluation
for the service-connected asthma and COPD disability. That
issue before the Board is taken to include whether there is
any basis for "staged" ratings at any pertinent time, to
include whether a current increase is in order. See
Fenderson v. West, 12 Vet. App. 119 (1999).
The service medical records show that the veteran was treated
for asthma. During a March 1992 VA general examination,
examination of the respiratory system revealed that breath
sounds were vesicular, expansion was equal and adequate. The
diagnosis after examination was asthma - COPD - by history.
The report of pulmonary function tests (PFTs) showed pre-
bronchodilator FEV-1 (forced expiratory volume in one second)
of 58 percent of predicted and pre-bronchodilator FEV-1/FVC
(the ratio of forced expiratory volume in one second to
forced vital capacity) of 120 percent of predicted. The PFTs
showed post-bronchodilator FEV-1 of 75 percent of predicted
and post-bronchodilator FEV-1/FVC of 126 percent of
predicted.
Following service the veteran received treatment at VA and
non-facilities for various disorders, including his asthma
and COPD.
During the February 1993 hearing at the RO the veteran
described the symptoms associated with his lung disorders.
He indicated that he was receiving treatment at a VA facility
once every 3 or 4 months. He was taking medication and using
an inhaler.
During a private examination in April 1996, the veteran
stated that he had had trouble breathing since Desert Storm.
Presently he continued to have dyspnea mostly on exertion and
was barely able to walk even up to a block. He also reported
having some rather recurrent cough.
Examination of the respiratory system revealed the trachea to
be central, movements equal on both sides, and a few
scattered rhonchi bilaterally. Several pulmonary function
test studies (PFTs) were conducted. The best effort PFTs
showed pre-bronchodilator FEV-1 of 55.6 percent of predicted
and pre-bronchodilator FEV-1/FVC of 87 percent of predicted.
The PFTs showed post-bronchodilator FEV-1 of 65 percent of
predicted and post-bronchodilator FEV-1/FVC of 86.6 percent
of predicted. These findings were interpreted as showing
moderately obstructive ventilatory impairment with
improvement after inhaled broncho-dilator.
During VA general and non-tuberculosis diseases examinations
in August 1997 it was reported that the veteran's attacks
were precipitated by such things as grass and paint fumed and
tended to be worse in the spring and fall. The examination of
the respiratory system revealed that chest expansion was
symmetrical and lung fields were clear to percussion and
auscultation. It was reported that the veteran required
Azmacort and Atrovent to maintain himself symptom free.
PFTs showed pre-bronchodilator FEV-1 of 67 percent of
predicted and pre-bronchodilator FEV-1/FVC of 115 percent of
predicted. The PFTs showed post-bronchodilator FEV-1 of 72
percent of predicted and post-bronchodilator FEV-1/FVC of 115
percent of predicted. These findings were interpreted as
showing moderate restrictive disease. A chest x-ray showed
no acute infiltrates. The diagnosis was (1) restrictive
respiratory disease, etiology undetermined, and (2) reactive
airways disease (bronchial asthma).
VA PFTs conducted in September 1997 showed pre-bronchodilator
FEV-1 of 67 percent of predicted and pre-bronchodilator FEV-
1/FVC of 115 percent of predicted. The PFTs showed post-
bronchodilator FEV-1 75 had 6 percent change and post-
bronchodilator FEV-1/FVC had a 4 percent change.
During VA examination in May 2002, the veteran complained of
wheezing
since he was in the Persian Gulf in 1990. He had been on
inhalers since on a p.r.n. (as occasion requires) basis,
which he especially used at night. He reported that he had
mild asthma, about one to two times per week and severe about
once a month. He had been a smoker of one pack of cigarettes
per day. He denied any fever or night sweats, and had no
significant weight gain or loss. He had no cough, congestion
or hemotysis. He had been on Azmacort two puffs twice daily,
albuterol and Atrovent two puffs on a p.r.n. basis.
On examination, lung examination was unremarkable with clear
breath sounds, and no wheezing, rhonchi or other adventitious
sounds noted. His chest X-ray was reported to be
unremarkable without cardiomegaly or lung disease. EKG was
normal. His pulmonary function test was pending. The
diagnosis was history of mild bronchial asthma, currently
stable on medications.
The report of PFTs by VA in June 2002 showed pre-
bronchodilator FEV-1 of 56 percent of predicted and FEV-1/FVC
of 98 percent of predicted. The PFTs showed post-
bronchodilator FEV-1 of 70 percent and FEV-1/FVC of 119
percent of predicted. The DLCO (SB) was 81 percent pf the
predicted value. The diagnostic impression was mild
obstructive disease and mild restrictive disease.
Analysis
The rating schedule criteria for evaluating respiratory
disorders changed during the pendency of the appeal. The
previous criteria, in effect prior to October 7, 1996,
provided that a 30 percent evaluation requires moderate
bronchial asthma manifested by rather frequent asthmatic
attacks (separated by only 10 to 14 day intervals) with
moderate dyspnea on exertion between attacks.
The next higher evaluation of 60 percent rating is provided
for severe symptoms with frequent attacks of asthma (one or
more attacks weekly), marked dyspnea on exertion between
attacks with only temporary relief by medication, more than
light manual labor precluded.
The next higher evaluation of 100 percent is provided for
pronounced disability with asthmatic attacks very frequently
with severe dyspnea on slight exertion between attacks and
with marked loss of weight or other evidence of severe
impairment of health. 38 C.F.R. § 4.97, Diagnostic Code 6602
(1996).
Under the revised rating criteria, which became effective on
October 7, 1996, a 30 percent evaluation is warranted for a
FEV-1 of 56 to 70 percent predicted, or an FEV- 1/FVC of 56-
70 percent, or daily inhalational or oral bronchodilator
therapy, or inhalational anti-inflammatory medication.
For assignment of a 60 percent evaluation, there must be a
showing of FEV-1 of 40 to 55-percent predicted, or; FEV-1/FVC
of 40 to 55 percent, or; at least monthly visits to a
physician for required care of exacerbations, or;
intermittent (at least three per year) courses of systemic
(oral or parenteral) corticosteroids.
For assignment of a 100 percent evaluation, there must be a
showing of FEV-1 of less than 40 percent of predicted value,
or; FEV-1/FVC of less than 40 percent, or; more than one
attack per week with episodes of respiratory failure, or;
requires daily use of systemic (oral or parenteral) high dose
corticosteroids or immuno-suppressive medications. See 38
C.F.R. § 4.97, Diagnostic Code 6602 (2002).
Diagnostic Code 6604 provided for the evaluation of COPD. A
30 percent rating is warranted if the following findings are
demonstrated: an FEV-1 of 56 to 70 percent predicted, or; an
FEV-1/FVC ratio of 56 to 70 percent, or; a DLCO (SB) of 56 to
65 percent predicted. 38 C.F.R. § 4.97, Diagnostic Codes
6603, (2002).
A 60 percent rating is warranted if the following findings
are demonstrated: a FEV-1 of 40 to 55 percent predicted, or;
a FEV-1/FVC ratio of 40 to 55 percent, or; a DLCO (SB) of 40
to 55 percent predicted, or; maximum oxygen consumption of 15
to 20 ml/kg/min (with cardiorespiratory limit). 38 C.F.R. §
4.97, Diagnostic Codes 6603 (2003).
In this regard the manifestations of the veteran's service-
connected asthma and COPD do not meet the criteria for a
rating in excess of 30 percent under either the older or
newer regulations. The VA and private examinations show that
the PFTs results do not meet the required criteria of a post-
bronchodilator FEV-1 of 40 to 55 percent predicted, or FEV-
1/FVC of 40 to 55 percent. The DLCO (SB) was 81 percent pf
the predicted value. In addition, although post-service
treatment records reflect that the veteran has received
treatment for his asthma and COPD, they do not show that he
has had at least monthly visits for required care of
exacerbations. Additionally the record does not reflect a
course of systemic corticosteroids.
Furthermore, there is no evidence that the disability
manifests severe symptoms with frequent attacks of asthma
(one or more attacks weekly), marked dyspnea on exertion
between attacks with only temporary relief by medication,
more than light manual labor precluded. During his most
recent examination, the lung examination was unremarkable and
he had clear breath sounds and no wheezing or rhonchi. The
most recent diagnoses was history of mild bronchial asthma,
which was currently stable on medications and mild COPD.
Thus, based on the foregoing, the Board finds that a higher
rating for asthma and COPD is not warranted. Also, the
evidence is not equipoise as to warrant the consideration of
the benefit-of-the-doubt rule. 38 C.F.R. § 3.102. The 30
percent rating is the highest rating warranted for the appeal
period. Fenderson v. West, 12 Vet. App. 119 (1999).
ORDER
Service connection for colitis is granted.
Service connection for a chronic disability manifested by a
sleep disorder due to an undiagnosed illness is denied.
Service connection for a chronic disability manifested by
fatigue due to an undiagnosed illness is denied.
Service connection for hearing loss of the left ear is
denied.
Entitlement to an increased evaluation for asthma and COPD is
denied.
REMAND
The report of the June 2002 VA examination for joints shows
that the examiner indicated that the veteran's multiple joint
complaints were more likely related to degenerative joint
disease than any undiagnosed illness. In this connection the
examiner noted that X-rays taken in 1997 revealed
osteoarthritic changes. The examiner indicated that current
x-rays would be taken. A July 2002 addendum to the above
examination shows that X-ray examination of the wrists,
knees, ankles, and feet were normal and large bilateral
calcaneal spurs of the feet. There was no evidence of
arthritis, fracture, dislocation or bone destruction of the
feet. The report concluded with an impression of
polyarthritis/polyarthralgia, undetermined etiology. In view
of these current x-rays findings the Board finds that
additional development is required.
The veteran's hypertension is currently evaluated under
Diagnostic Code 7007, which provides for the evaluation of
hypertensive heart disease. The Board notes that the
regulations pertaining to rating cardiovascular disabilities,
which include hypertensive cardiovascular disease, were
revised effective January 12, 1998.
Under the new rating criteria for Diagnostic Code 7007, a 30
percent rating requires a workload of greater than 5 METs but
not greater than 7 METs resulting in dyspnea, fatigue,
angina, dizziness, or syncope, or; there is evidence of
cardiac hypertrophy or dilatation on electrocardiogram,
echocardiogram, or X-ray.
A 60 percent rating requires more than one episode of acute
CHF in the past year, or; workload greater than 3 METs but
not greater than 5 METs resulting in dyspnea, fatigue,
angina, dizziness, or syncope, or; left ventricular
dysfunction with an ejection fraction of 30 to 50 percent.
A 100 percent rating requires chronic CHF, or; workload of 3
METs or less resulting in dyspnea, fatigue, angina,
dizziness, or syncope, or; left ventricular dysfunction with
an ejection fraction of less than 30 percent. (A note in the
regulation indicates that one MET is the energy cost of
standing quietly at rest and represents an oxygen uptake of
3.5 millimeters per kilogram of body weight per minute. When
the level of METs at which dyspnea, fatigue, angina,
dizziness, or syncope develops is required for evaluation,
and a laboratory determination of METs by exercise testing
cannot be done for medical reasons, an estimation by a
medical examiner of the level of activity (expressed in METs
and supported by specific examples, such as slow stair
climbing or shoveling snow) that results in dyspnea, fatigue,
angina, dizziness, or syncope may be used to rate the
veteran. 38 C.F.R. § 4.104 (2001).)
The veteran was last afforded a VA heart and hypertension
examination in May 2002. This examination did not did not
indicate the workload, measured in metabolic equivalents
(METs), which would result in dyspnea, fatigue, angina,
dizziness, or syncope. As indicated above METs are
incorporated into the current schedular criteria applicable
to evaluating hypertensive cardiovascular disease. See 38
C.F.R. Part 4, § 4.104, DC 7007 (2003). The Board finds that
another VA examination is required.
Accordingly, the case is REMANDED for the following:
1. The RO should furnish the veteran the
appropriate release of information forms
in order to obtain copies of all VA and
private medical records pertaining to
recent treatment for the disabilities in
issue which have not been previously
submitted.
2. The RO is requested that forward the
claims folder to the VA examiner who
conducted the June 2002 orthopedic
examination for an addendum (if
unavailable to another VA orthopedist).
Request the examiner to again review the
claim folder in light of the July 2002 VA
x-ray report and indicate if there is any
change warranted in the June 2002 opinion
concerning the question as to whether it
is as likely as not that the veteran has
a chronic disability manifested by
multiple joint pain and muscle spasms of
the back, shoulders, and elbows due to an
undiagnosed illness. If yes, the
examiner is requested to identify all
joints involved. If additional
examinations and/or tests are required
they should be conducted. A complete
rational for any opinion expressed should
be included in the report.
3. The RO should schedule the veteran
for a VA examination by a cardiovascular
specialist, to determine the nature,
extent, and severity of his service-
connected hypertensive cardiovascular
disease. In addition to x-rays, any
other testing deemed necessary should be
performed. The claims file should be
made available to the examiner. The
examination should include serial blood
pressure readings.
The examination report must contain
sufficient clinical information so that
the Board may address the rating criteria
appropriate to rating hypertensive
cardiovascular disease under the rating
provisions in effect prior to and on
January 12, 1998. This should include an
opinion on whether more than light manual
labor or more than sedentary employment
is not feasible; whether the veteran has
marked enlargement of the heart; and
whether there is congestive heart
failure.
In addition, the examiner is requested to
comment on the manifestation of
symptomatology associated with
hypertensive cardiovascular disease as
identified in the current rating
provisions, such as evidence of:
congestive heart failure; workload
restrictions, measured in METs, resulting
in dyspnea, fatigue, angina, dizziness,
or syncope; or left ventricular
dysfunction with ejection fraction.
If the level of METs at which dyspnea,
fatigue, angina, dizziness, or syncope
develops cannot be made by a laboratory
determination by exercise testing for
medical reasons, the examiner should
estimate the level of activity (expressed
in METs and supported by specific
examples, such as slow stair climbing or
shoveling snow) that results in dyspnea,
fatigue, angina, dizziness, or syncope. A
complete rationale should be provided for
the opinions given.
4. The RO is requested to review the
claims file and ensure that all VCAA
notice obligations have been satisfied in
accordance with the recent decision in
Paralyzed Veterans of America v.
Secretary of Veterans Affairs, as well as
38 U.S.C.A. §§ 5103, and 5103A, and any
other applicable legal precedent. See
Quartuccio v. Principi, 16 Vet. App. 183
(2002).
5. Following any additional development
deemed appropriate by the RO, the RO
should readjudicate the appellant's
claim. If the benefit sought is not
granted, the appellant and her
representative should be furnished a
supplemental statement of the case and
given an opportunity to respond.
Thereafter, the case should be returned to the Board for
further appellate consideration. The appellant has the right
to submit additional evidence and argument on the matter the
Board has remanded to the RO. Kutscherousky v. West, 12 Vet.
App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board for additional development or other appropriate action
must be handled in an expeditious manner. See The Veterans'
Benefits Improvements Act of 1994, Pub. L. No. 103-446,
§ 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West
2002) (Historical and Statutory Notes). In addition, VBA's
Adjudication Procedure Manual, M21-1, Part IV, directs the
ROs to provide expeditious handling of all cases that have
been remanded by the Board. See M21-1, Part IV, paras. 8.43
and 38.02.
____________________________________________
ROBERT P. REGAN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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